This action arises from an accident that occurred on March 4, 1994 when plaintiff, then a 23-year-old employee of National Auto Sales, was injured while assisting in unloading a trailer his employer had leased from defendants. Plaintiff alleged that he sustained spinal injuries and sought and obtained compensation and medical benefits from Universal Underwriters Insurance Company, his employer's compensation carrier.

The trial, which was bifurcated, produced a liability verdict that defendants' negligence was the sole proximate cause of the accident. Counsel for the parties then advised the court of their preverdict agreement that such a finding would trigger a settlement in plaintiff's favor for $600,000.

Universal asserts a lien for $150,277.79 on the settlement amount for past compensation and medical benefits paid to plaintiff as of January 19, 2001. Plaintiff contends that Universal has no lien and seeks an order directing Universal to pay $152,454.80 for its share of litigation costs.

" When a workers' compensation claimant recovers damages in a third-party action, the compensation carrier's equitable share of litigation costs incurred by the claimant may be apportioned on the basis of the total benefit that the carrier derives from the claimant's recovery" (Matter of Kelly v State Ins. Fund,60 N.Y.2d 131, 135). The carrier has a lien on the claimant's recovery in that action in an amount equal to the amount of the past compensation it has paid. Workers' Compensation Law § 29 requires that litigation costs be equitably apportioned to ensure that the compensation carrier assumes its full share of those costs. The determination of what constitutes equitable apportionment of litigation costs is

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left to the courts (see, Matter of Kelly v State Ins. Fund, supra at 138).

The lien afforded compensation insurance carriers does not extend to compensation and/or medical benefits paid in lieu of first-party benefits that " another insurer would have otherwise been obligated to pay" under article 51 of the Insurance Law (see, Workers' Compensation Law § 29 [1-a]). Insurance Law § 5103 (a) provides in pertinent part that required policies of liability insurance issued to the owners of motor vehicles shall provide for the payment of first-party benefits to persons, other than the occupants of another vehicle or a motorcycle, for losses arising out of the " use" of the insured vehicle. For the definition of " motor vehicle," Insurance Law § 5102 refers to section 311 of the Vehicle and Traffic Law. As defined in that statute, the term includes trailers, semitrailers and nonagricultural tractors.

A person such as plaintiff who is loading or unloading a parked tractor trailer is " using" the vehicle within the meaning of Insurance Law article 51 (see, Walton v Lumbermens Mut. Cas. Co.,88 N.Y.2d 211; Brown v Mr. Seconds Bldg. Material,204 A.D.2d 1027; Kessler v Liberty Mut. Ins. Co.,158 A.D.2d 974). Thus, Universal's right to recover the first $50,000 in compensation and medical benefits paid is limited to an arbitration claim against Ryder's insurer (see, Insurance Law § 5105). Plaintiff's contention that the first $50,000 of compensation and medical benefits provided him must be deducted from the lien asserted by Universal is correct (see, Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.],76 ...

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